September 18, 2007 The Pump Handle 0Comment

California often takes the lead in responding to public health issues, so it’s not surprising that their state legislature was the first to take up a bill to ban the artificial butter flavoring chemical diacetyl from California workplaces by 2010. California is home to 29 flavoring plants, and state health officials have diagnosed several flavoring workers with bronchiolitis obliterans, the debilitating lung disease that strikes many young, otherwise healthy workers who are exposed to diacetyl on the job.
State Assemblywoman Sally Lieber introduced the diacetyl legislation in February, and Senator Joseph Simitian followed with a similar bill in the state’s Senate. Yesterday, the Senate bill was up for a vote, and it looked like it would fail until two Democrats swung their votes to support it. Then, as the Sacramento Bee’s Shane Goldmacher reports, things took a couple of unexpected turns:

Suddenly, the vote was tied at 20-20, a rare occurrence that allows the state’s lieutenant governor, John Garamendi, the largely ceremonial president of the Senate, to cast a decisive vote.

There hasn’t been a 20-20 deadlock in the Senate for more than a decade. Whispers began in the Senate chambers about calling Garamendi to break the tie.

“I had no idea if the lieutenant governor was in the building or available,” Lieber said. (Garamendi’s office reports he was in Sacramento and supportive of Lieber’s bill.)

But before Garamendi could intervene, Republican Sen. George Runner of Lancaster began a procedural maneuver in which he actually voted for the bill in order to derail it.

“We were all of a sudden confronted with a vote that was 20-20, which meant that it could be broken by the lieutenant governor, and I just was not comfortable with (that),” said Runner, who originally voted against the bill. So Runner says he switched his vote to break the tie, passing the measure by a razor-thin margin, 21-19.

Why? Because as a supporter of the measure, Runner could ask for “reconsideration” or a revote — and he did less than 10 minutes later.

“When he sought reconsideration, I thought, ‘Why the heck should we be doing this — the bill has passed,'” said Sen. Alan Lowenthal, a Democrat who had presented Lieber’s bill to the Senate.

But neither Lowenthal nor any other Senate Democrat objected — and a revote was granted unanimously.

That decision erased the results of the previous vote and no other vote was taken.

“I did not know what was going on,” said Lowenthal.

If the diacetyl bill were to come up again, said Runner, at least one Republican would simply not vote for the bill, preventing another 20-20 tie.

“I can tell you there’s nothing in our playbook that says that’s what we do,” Runner said. “Sometimes you just get lucky.”

But Lowenthal said Runner’s maneuver was neither “fair” nor “proper.”

“I don’t like it,” Lowenthal said. “A lot of things we do are based on trust, what they are saying is it was a political move to kill a bill.”

The move put the legislation on hold until January 2008, when the Legislature reconvenes.

Even without being passed, the legislation has achieved something: it’s made regulation by the state’s OSHA industry seem like an option that the food industry can support, as David Michaels explained back in April:

The threat of a ban has forced the food industry into an unusual position – industry representatives are now praising the California OSHA program, which is also moving to issue regulations limiting exposure to the deadly chemical but has no plans to ban it (to industry’s relief.)

… The bill to ban diacetyl from state workplaces by 2010 has been making it’s way through committees in the California Assembly (see our earlier post here), and a similar one has moved from the Senate’s Environmental Quality committee to its Appropriations committee.

The industry will do their best to stop a legislated ban – meaning that they will support (at least publicly) Cal-OSHA’s regulatory process. Without the fear of legislation, they’d simply tell Cal-OSHA to back off.

… The current draft of the standard would require engineering and work practice controls to prevent employee exposures to harmful flavoring substances, and exposure assessment to monitor the effectiveness of these controls. If air sampling detects exposure after the controls have been implemented, employers would be required to supply respiratory protection. Annual training for employees on flavorings exposure and control methods and ongoing medical surveillance for employees working in or near areas where flavorings are handled would also be required.

This is the kind of standard-setting that the U.S. OSHA should have gotten started on a long time ago. Workers in all 50 states need protection.

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